The Department may take action in response to anti-competitive, discriminatory, predatory or unjustifiable activities by a foreign government or foreign airlines against a U.S. airline under 49 U.S.C. 41310, the International Air Transportation Fair Competitive Practices Act (IATFCPA) of 1974, as amended. The Department may take such action upon a complaint by a U.S. airline or on its own initiative. The Department has up to 180 days from the date that the complaint is filed to take action to resolve the issues raised, dismiss the complaint, or resolve it through diplomatic.
In order for the Department to take action under IATFCPA complaints, there are, however, specific criteria that the DOT must meet to take the full period available under the statute for acting on the complaint:
- Within 60 days, the Department must approve, deny, or dismiss the complaint.
- It can extend the action deadline for 30 days if it determines that the issues raised in the complaint can be resolved through discussions with the foreign country involved.
- The Department may continue to extend the action deadline for up to 90 additional days if it determines that negotiations with the foreign country have progressed to the point that a resolution is imminent.
Procedurally, upon the filing of a complaint, the Department issues an order soliciting comments from interested parties. After receipt of those comments, the Department either extends the action deadline, or acts on the complaint at that time. When the Department acts on the complaint, it may propose a sanction to redress the actions against the U.S. airline(s), or defer action on what sanction would be appropriate while it continues its intergovernmental discussions with the foreign government.
If the Department proposes a sanction, then all parties are afforded an opportunity to comment before the Department takes final action, subject to Presidential review. Generally speaking, the intergovernmental process has been very successful in resolving complaints filed by U.S. airlines. Action on all complaints is coordinated with the Department of State, the Department of Commerce, and the U.S. Trade Representative. These complaints are processed by the U.S. Air Carrier Licensing Division in the Office of International Aviation.
Actions Under Part 213
The Department may also seek redress for anti-competitive practices by requiring a foreign airline to seek approval of its schedules for all or a portion of its services involving the United States, under 14 C.F.R. Part 213. The Department may take action pursuant to Part 213 on its own initiative or at the request of a U.S. airline. Such actions may be taken independently, or in conjunction with an IATFCPA complaint.
Under Part 213, the Department may require a foreign airline to seek approval of its schedules for all or a portion of its services involving the United States if it finds that such action is in the public interest and that the government of the foreign airline has, over the objections of the United States:
- taken an action that impairs, limits, or denies operating rights to a U.S. airline; or
- otherwise denied a U.S. airline a fair and equal opportunity to compete.
This is often referred to as Phase 1 of the Part 213 process. The foreign airline may continue to operate the filed schedules unless and until the Department issues an order notifying the airline that all or a portion of the schedules are contrary to the public interest or applicable law. This is often referred to as Phase 2 of the 213 process. A Department order limiting the operations of a foreign airline under Part 213 is subject to Presidential approval before it becomes effective.
The requirement to file schedules is an indication that the Department is concerned about actions that have or would be taken against a U.S. airline by the foreign airline’s government. An order that would require discontinuation of services or that would prevent implementation of proposed services is a retaliatory action taken only after the United States has objected to the foreign airline’s homeland government and initial intergovernmental consultations have not resolved the issues involved. In most cases the Department has not had to progress to Phase 2 of the Part 213 process.